MIS. AVK TRADERS versus KERALA STATE CIVIL SUPPLIES CORPORATION LTD.

Citation: [2013] 10 S.C.R. 562 · Decided: 29-10-2013 · Supreme Court of India · Bench: K.S. RADHAKRISHNAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
[2013] 10 S.C.R. 562 
MIS. AVK TRADERS 
v. 
KERALA STATE CIVIL SUPPLIES CORPORATION LTD. 
(Civil Appeal No. 9697 of 2013) 
OCTOBER 29, 2013 
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.] 
Code of Civil Procedure, 1908 - Or.XX/I, r. 10 - Devolution 
of interest during pendency of suit - Suit instituted by 
C partnership firm consisting of two partners - One of the two 
partners died - Subordinate Court allowed amendment sought 
by the sole surviving partner (appellant) and permitted him 
to proceed with the suit as a proprietary concern - Justification 
- Held: Justified - The Court can grant leave to prosecute the 
D suit against the person to or upon whom such interest has 
been devolved - On facts, the partner who died was none other 
than the father of the appellant, and the other heir of the 
deceased partner was the sister of appellant who was not 
interested in joining the firm - Therefore, there was complete 
E devolution of interest in favour of the appellant - High Court 
by taking a hyper-technical approach held that if prayer of 
appellant was allowed, the same would alter the nature and 
character of the suit - Such a stand cannot be countenanced 
considering the peculiar facts and circumstances of the case 
F - Further, the High Court failed to notice that if the partnership 
firm succeeds in the suit, the decree so granted would not be 
executable, and hence a nullity. 
A registered partnership firrn, consisting of only two 
partners, filed a suit against respondent-corporation. 
G During pen~ency of the suit, one of the partners died. 
Though the firm stood dissolved, in terms of the 
partnership deed, the sole surviving partner (appellant) 
could continue the business of the firm as a proprietary 
concern. Consequently, all the interests of the firm stood 
H 
562 
AVK TRADERS v. KERALA STATE CIVIL SUPPLIES 563 
CORPORATION LTD. 
devolved upon the appellant. He filed an application for A 
leave to continue to prosecute the suit as a proprietary 
concern; and another application seeking necessary 
amendment of the plaint. The Subordinate Court allowed 
the applications preferred by the appellant. 
Aggrieved, the Respondent-Corporation preferred 
B 
Petition before the High Court. The High Court did not 
allow the prayer for amendment of the plaint moved by 
the appellant holding that there was no question of 
altering and amending the plaintiff-partnership firm as a C 
proprietary concern as that would alter the nature and 
character of the suit, which cannot be permitted, and 
further that the indefeasible rights of the legal heirs of the 
deceased partner were insulated under sub-rule (2) of 
Rule 4 of Order XXX of CPC. Hence the present appeal 
by the appellant. 
D 
Allowing the appeal, the Court 
HELD: 1.1. The Subordinate Court allowed the prayer 
of appellant possibly bearing in mind the principle laid 
E 
down in Order XXll Rule 10 CPC, which deals with the 
procedure in case of assignment before the final order 
of the suit. Rule 10 refers to "devolution of any interest" 
during the pendency of the suit. In such a case, the Court 
can grant leave to prosecute the suit against the person 
to or upon whom such interest has been devolved. 
Admittedly, the partner who died is none other than the 
father of the Appellant and the other sole surviving heir 
is his sister. Sister is admittedly not interested in joining 
F 
the firm and, therefore, she is not taking over the assets 
and liabilities of the firm. Therefore, there has been a G 
complete devolution of interest in favour of the Appellant. 
Under the circumstances, the Subordinate Court had 
allowed the amendment and permitted the Appellant to 
proceed with the suit, granting necessary amendment, 
which, according to the Subordinate Court, was H 
564 
SUPREME COURT REPORTS 
[2013] 10 S.C.R. 
A necessary for a proper and effective adjudication of real 
dispute between the parties. The High Court by taking a 
hypertechnical approach held that if such a prayer is 
allowed, the same would alter the nature and character 
of the suit. Such a stand cannot be countenanced 
B cQnsidering the peculiar facts and circumstances of the 
case. [Para 9] [568-H; 569-A-E] 
1.2. The legal consequences pointed out by the High 
Court might apply in a case where one of the several 
C partners dies in the suit instituted in the name of the 
partnership firm as compared. to when one of the two 
partners of the partnership dies. Further, the High Court 
failed to not

Excerpt shown. Read the full judgment & AI analysis in Lexace.